*1 of the opinion that the child should be left in the home in which he has resided for several years past. The trial court was justified did, in ruling as it and we should not substitute our judgment for that of the Barnes, Lyle Kaysville, J. for plaintiff trial judge unless judgment his is clearly appellant. arbitrary capricious based on the Hansen, Gen., Robert B. Atty. Franklyn evidence. Matheson, Gen., B. Atty. Asst. Lake Salt case, In this judge that learned Mrs. Jones, City, Ernest W. Asst. Weber County times; Wilson had been married three that Atty., Ogden, respon- for defendant and she speak refused to to the mother of the dent. child; that the mother voluntarily surren- dered the child to the defendant for the ELLETT, Chief Justice: purpose of adoption and specifically re- This case was before us 1976 wherein quested that place defendant not Mrs. Wilson appealed ruling grandmother. child with the The court act- she, trial court to the effect as a properly ed in making ruling. grandmother, standing had no to interfere The judgment of the trial court is af- with the Family Services Division in its firmed. No costs are awarded. placement grandson of her for adoption.1 This Court reversed held that the blood CROCKETT, HALL, JJ., WILKINS and relationship grandparent between concur. grandchild is such that the court should MAUGHAN, J., have continued a stay proceedings order concurs in the result. grandmother until the could have her day
in court. day
That as now been had. Mrs. Wilson’s
counsel called members of the defend- placement
ant’s committee on the of chil-
dren and tried they to show acted
arbitrarily capriciously in placing the
child an home. He adoptive also tried to Utah, Appellant, show that the committee never STATE of Plaintiff and considered possible person his client as a to adopt the gave child. Mrs. Wilson also testimony as Kay GALLION, Debra Defendant child, to her ability rear etc. Respondent. The trial testimony court heard the No. 14966. held that in considering placement the child for adoption, (re- the defendant Supreme Court of Utah. spondent) did not act capriciously or arbi- Nov. trarily in any manner. All the committee witnesses they testified had seriously grandmother
considered the as one to whom
adoption could be permitted, but that
welfare of the child was the paramount in making
item they determination that
made. hearing
At the from which this taken,
appeal the witnesses were still Family Services, Utah,
1. Wilson v. *2 Hansen, Gen., (iii) To make false or Atty. forged pre- William W. Robert B. Gen., or written order for a Barrett, City, scription Lake controlled Atty. Asst. Salt substance, Wootton, or to alter the same or to County Atty., Utah alter T. Noall any prescription or written order Provo, issued plaintiff appellant. pursuant or written to the terms of this Provo, for defendant Esplin, Michael D. *3 act. respondent.
Thus a necessary element of the crime MAUGHAN, Justice: charged is proscribed conduct in- volves a controlled substance. Section 58- from an order of the appeals The state 37-2(5) provides: an information filed quashing district court charged Defendant was The against defendant. words ‘controlled substance’ mean 58-37-8(4) D drug, substance, with a violation Section or immediate precursor U.C.A.1953, I, II, III, IV, as enacted in schedules (a)(iii), or V of section forged prescription for a 58-37—4. she altered . . . substance, demerol. II controlled Schedule Under the legislative design, one of the provides under this section Conviction consequences scheduling a substance is felony degree. for a in the third penalty the determination of the for the affirm. We crime, viz., penalties proscribed for acts 58-37-4(3)(b), the substances In Section 58-37-8(1) section A (5) E are by were determined to more severe for controlled substances in II were included in set forth. Schedule schedules I III, IV, and II than those in substance, demerol, appear does not V. 58-37-3(2) Section provides: asserted in a therein. The state memoran- The attorney general of the state of trial court the attorney dum to the Utah shall administer provisions
general had added demerol to Schedule II this act may add or delete substances in accordance with the Utah Controlled or reschedule all substances enumerated Act, Title Chapter Spe- 37. Substances in the schedule in section 58-37—4. . the state claimed: cifically adoption Since of the Thus is conferred on the attorney Act, Controlled Substance Demerol has general crime, to viz., define a proscribe to added to the been controlled substance conduct not previously deemed criminal un- list, being possession a true list in the der the Controlled Act, and to Parish, chemist, Dr. Wesley located at designate the penalty therefor by the sched- Lane, Provo, 815 West Columbia Utah.1 uling of the substance. granted trial court motion grant Is the attorney ground provisions on the in the quash amend, effect, by the act Act under Utah Controlled Substances adding, deleting or rescheduling a con- attorney general which the added demerol trolled substance unconstitutional? Article an a controlled substance were unconsti as V, I, Utah, Section Constitution provides: legislative power. tutional powers of the government of the 58-37-8(4) (a),D under which de Section of Utah shall be divided into three charged, provides: fendant distinct departments, Legislative, any person It shall be unlawful Executive, Judicial; per- no intentionally: knowingly charged son with powers the exercise of [*] [*] n n n n : properly belonging to one of these de- specifically Although attorney general defendant asserted to have effect shall be proscribed in issue that demerol was not certified and filed with the office of the secre- II, proffer any tary keep the state did not evi- Schedule of state. The of state shall compliance permanent register show Sec. 58-37- dence to of the rules or controls “every by 5(3): . substance controlled . certified.” make all laws which granted is also ‘to exercise functions shall partments, others, carry- ex- necessary proper to either of the shall be appertaining expressly herein directed cept in the cases Powers.’ ing foregoing into Execution the permitted. must obvious- congressional powers Some including powers ‘to ly delegated, attorney general is a member taxes,’ collect ‘to borrow mon- VII, Article Department, Section Executive money,’ coin and ‘to raise and ey,’ ‘to advisor of the State legal He is the was not dis- support Delegation Armies.’ VII, In Hansen officers, Article Convention, at the cussed Constitutional court ruled it is within Barlow2 this Madison that the except that a motion if not his attorney general, right ‘to execute such given power President be clarify the constitu- bring suits duty, ... Legislature other laws enacted tionality of the national delegated by Under Con- time to time be appropriate. if he deems *4 Act, charged person unnecessary. a Legislature’ trolled was defeated powers, executive the exercise of with palpably Davis out as unsound the points attorney general, in the case of in 1911that Supreme assertion Court the constitu- duty challenge includes the authority to make administrative rules “the law, a function3 assigned a is tionality of legislative power, nor delegation is not a legislative department. appertaining to are such rules raised from an administra- obvious, person, who is to The conflict is legislative tive to a character because infirmi- possible alert to constitutional punished public thereof is as a violation ties, legislative proc- is in the participating offense.”4 Davis contends the assertion element of determining an essential ess authority as to what the law shall be is act, this penalty. By crime and the false, delegable clearly virtually not is consigned to the anoma- attorney general creating statute an administrative every chal- exercising potential position lous delegates authority to determine agency fact, has, in amended. a law he lenge to the law shall be. Davis claims that what opinions Supreme recent Court 1, V, any pur has If Article Section reasonably frank in generally have been the concentration prohibit it is to pose making power that the law recognizing per in one executive legislative and recently Davis has stated: delegable.5 More case law to federal The adherence son. delegation concerning is almost a non-delegation doctrine of in the dilemma does not resolve prevented It has not complete failure. V, 1, for there is Article Section terpreting power. Nor has delegation in the Constitution comparable provision no of assur- accomplished purpose its later of the United States. delegated power guided will be ing impor- More by meaningful standards. Davis, Administrative pointed As out in tantly, provide it has failed to needed Treatise, 2.02, 79: p. Law Section and un- against unnecessary protection wholly non-delegation doctrine discretionary power. The time controlled provides judgemade. The Constitution acknowledge has come for the courts herein merely: ‘All Powers is unsat- non-delegation that the doctrine Congress be vested in a granted shall ways isfactory and to invent better the United States .’ 47, any term “functions” 2. 23 Utah 2d there be distinction the if than denote a broader field of activities would “power.” Burch, word 3. In State ex rel. Black v. 226 Ind. court, (1948) 80 N.E.2d in inter- preting p. a constitutional similar to Ar- Id. 77. V, “pow- ticle Sec. observed that the words interchangeable, were er” and “functions” but p. Id. against arbitrary administrative protect And the Federalist has with equal power.6 point brevity remarked, that ‘the ac- powers, legislative, cumulation of all ex- jurisdic- doctrine in this delegation ecutive, judge-made judiciary, hands, law but has a foun- in the same tion is However, in our state constitution. dation one, few, whether of or many, and V, express language Article Section hereditary, self-appointed, whether specifically aspect to another is addressed elective, may justly pronounced than that in the developed very definition of tyranny.’ law. federal case essence, V, Article Section 1 is prohibition In this case the of sec not directed towards the delegation legis “person” charged tion is directed to a power per proscribes lative se but the con the exercise of powers properly be ferring of legislative functions on specified longing department.” to the “executive persons in the executive department specifies The Constitution further in Article avert potentiality tyranny by con VII, 1, the persons Section of whom the centrating power Executive these Department shall consist. Thus individuals. VII, it is the “persons” specified Article aspect The other this case which charged who are with the exer powers belonging
cise of to the Executive merits response is whether the Controlled who are from exer Department, prohibited Substances Act improperly delegated has functions cising any appertaining to the legislative power. The through *5 legislative judicial departments. and Since attorney general, contends the statute con V, 1, the inhibitions of the Article Section fers no more than the traditional adminis specific “persons,” are directed toward powers. trative This court has reiterated nothing legislative is to restrain the there Legislature the may: creating administrative department from provide for the execution functions, viz., legislative to exercise bodies through administrative agencies of its making. Although rule administrative bod legislative policy, may upon confer nominally designated part ies are such pow- administrative officers certain branch, they executive do not fall within duty determining ers and the the ques- the definition of the Execu Constitutional Department prohibition tive of Ar tion of the existence of certain upon facts V, 1 apply ticle Section does not thereto. legis- which effect or execution of its policy may dependent.7 lative be V, expressed
The intent in Article proscribe delegation Section was not to hand, the other this court has On stated: legislative power, although under Article Legislature The is not permitted to ab- VI, 1, there are limitations in Section this dicate or transfer to others the essential those, regard, prevent but to who exercise legislative function with which it is thus power assigned by the Constitution to vested. ... aggrandizement their department, derived, Finding Compan In Western Leather and power, by their however exercising appertaining functions depart another y9 imposition this court observed that the ment. a tax the designation of those who pay must the same is such an essential purpose
The ex- aptly may function as not be transfer in on pressed Story, (5th the Constitution Ed.), 523, p. 392: Tite v. red to others. In State Tax Com- Finding Davis, Treatise, Leather and 8. Western Co. v. State Tax Administrative Law Commission, 2.00, 227, 231, Supplement, p. Sec. 87 Utah 48 P.2d v, Clayton Bennett, 5 Utah 2d 298 P.2d Agri (1956); supra. Rowell v. State Board of 9. Note culture, 353, 358, 98 Utah certainly to oth- may delegate Congress giving to the court ruled
mission10this ers, legislature may which the in power to determine Tax Commission The itself. . exercise rightfully penal- the amount judgment own exactly which has not been drawn which could line function was a ty subjects, which important those separates v. Johnson11 delegated. be not by legisla- Constitution, entirely regulated must be that under held this court interest, itself, from those of less punish ture not denounce may the courts made, general provision may not made punish- crimes acts omissions given to those who are to act statute, legislative power power for it is a by able prescribe general provisions up and to to fill acts as crimes such to declare Supreme Court had penalties. details.’ If proper lead, this the law of consistently followed standard set forth constitutional The much might be more satisfac- subject incorporated in the v. Johnson in State tory. 76-1-105, as Code. Section Utah Criminal cite case wherein does not The state 1974, provides: 1973, amended enacted in deemed criminal has previously conduct abolished and are Common law crimes set denounced and been so by made so unless crime no conduct process. the administrative through ordi- statute or code, applicable other this be distinguished instant case must nance. Grimaud,13 wherein from United States Act, is in con- Controlled ruled there was not an unconstitu- court act, for under the provision, this flict with tional crime, by an admin- made a conduct Agriculture. secretary Secretary of attorney ruling certified istrative make regu- rules and granted of the secre- filed the office general and covering forest reservations. Con- lations state, Section 58-37-5. tary it a rules gress made crime violate the made regulations secretary pur- in Belt v. Turner12 this recently, Most authority granted the stat- suant to court stated: forbidding made a ute. rule *6 legislature repeal of the to grazing on the forest reservation stock imposed penalty the to be for or amend permit. The issue without a before the judicial concern. crime is not matter of court was whether the forest reserve act of sovereign power the of the part It is unconstitutional, insofar as it del- 1897was state, right is the of the and it exclusive egated Secretary Agriculture pow- it; amend change to or regulations, er make rules and made to there are recognized has Thus this court penal a violation thereof a offense. The functions which essential certain stated: court others. to cannot be transferred subjects . The the to which Davis, in 1 Admin- is reflected This issue Secretary regulate can are defined. The 2.02, Treatise, pp. 80- Law apart istrative are set as a forest reserve. lands 81: required pro- He is to make early history depredations tect them from and from helpful most
Possibly the
regu-
harmful uses. He is
‘to
by Chief Justice
authorized
is a
drawn
distinction
occupancy
pre-
will
be contended
late the
and use
‘It
not
Marshall:
or to
A
delegate to the courts
serve
forests
destruction.’
Congress can
Tribunal,
regulating
which are
violation of reasonable rules
other
legislative.
occupancy
But
the use and
of the
exclusively
property
strictly
404, 416-417,
(1936).
P.2d
563
57
734
13.220 U.S.
31 S.Ct.
55 L.Ed.
89 Utah
(1911).
18, 26,
. The did not exer of the legisla- ture to define crimes and fix the legislative power declaring punish- cise ment therefor is without punishment question.16 penalty fixing grazing sheep permit, without a but the The court cited case law from Mississippi, imposed by the act itself. punishment with rulings similar to those cited herein in Commission, Tite v. State Tax note 10 su- pra, Johnson, v. State note Act, supra. In the Controlled Substances ad- The court cited case law from other juris- only ministrator not determines that a sub- dictions wherein it has been held the controlled, stance should be he further punishment define crimes there- substance, effect, schedules the which in for is vested in legislature. magnitude declares the punishment. fixes the The administrator is The court held that the authority to exercising an essential function define crimes punishment and fix the there- to him. which cannot be transferred for is exclusively vested legislature, and it not delegate that power either challenge A similar to the instant one expressly or by implication, but must exer- State,15 was made in Howell v. wherein it cise it under Article Section 33 of the urged Mississippi was Controlled Constitution of Mississippi.17 Act was unconstitutional inso- far as it conferred on the Board of In United States v. Pastor18 the defend- authority Health to schedule or reschedule ant argued that the federal act (Drug argued a controlled substance. state Act, Abuse 811) U.S.C. Section granting legislative grant authority prop- authority to the attorney general to sched- given only er since the Board was fact-find- ule controlled substances constituted an un- ing authority classify dangerous sub- constitutional delegation au- provided guidelines thority. stances and was Although the court cited United Grimaud,19 making its determinations. The court States it' quali- overlooked the forth, viz., that the fication set question validity observed that Congress not because, administrator grant authority penalty. arose had set the acknowledged court ruling Law, Howell v. the Uniform Controlled Substances Mississippi, it, but declined to noting follow penalties prescribed for violations are anti-delegation doctrine had re- inextricably tied to the various schedules. greater tained much vitality the state The court said: courts than it had in the federal courts. practical effect mov- .The *7 ing a substance from one schedule and There are sound ruling reasons for the it in placing another is to increase or definition of a crime precise and the punish- diminish the criminal for viola- ment therefor to be essential that, tion of the act. It is likewise true if functions, which cannot be transferred. substances are added to or deleted from Criminal trials would be unduly complicat- any of the schedules such action makes ed, for the defendant would have the right pertaining acts to the substances so added challenge to the administrative procedure crime, deleted, and as to a substances findings and the where a substance has abolishes a crime. The result is that the been scheduled or rescheduled. A similar U.S., pp. p. legislative power 14. at at 522-523 of 485 of 31 17. This vests the in legislature. S.Ct. Miss., F.Supp. So.2d 774 18. 419 pp. supra. at 779-780 of 300 So.2d. 19. note (e.g., agencies could not utive branch administrative by legislature determination rulings Commission, The administrative challenged. such as the Public Service be incorporated are statutes and are not Industrial Tax Com- Commission code, who wishes to abide person into the mission), responsi- to out the carry in order to resort would have the law by them, upon power have the imposed bilities kept by the of register permanent that regulations must be to make rules a sub- the status of determine state to with, comply failure complied that stance.20 or and that penalties, must have sanctions if admin- must the force of law. they involved therefore have peril is a certain There be applied can procedures istrative legislature Even cannot dele- though an administra- couldn’t Why law. criminal to make laws to an execu- gate power 76-6-412, penalties tor revise the officer,1 may laws which take tive it enact price index or a to the consumer according upon the ascertainment certain effect had an ex- there been determination that conditions, may delegate facts and property valued amount of theft cessive duty to the existence of such determine A determination at than $100. less facts to executive or administrative offi- appropriate of a crime elements particular delegation cers.2 Whether a are, therefor under our Consti- punishment depends is upon valid whether the which must be judgments, system, tutional legislature prescribed has sufficient stan- exclusively legislature. made or to guide dards limitations the exercise of that in accordance with its will.3 HALL, JJ., concur. WILKINS is a principle It cardinal of due process CROCKETT, (concurring sepa- Justice person that a is entitled to reasonable no- rately). tice, or a knowing, means of what conduct affirming ruling I concur prohibited he before can be held criminal- no proper court that there is foun- district ly responsible for in it.4 engaging In con- charging for the defendant with a dation formity procedure therewith the for the possession of “demerol” as a con- crime rule, itself, adoption of such and the rule But I have trolled substance. reservations sufficiently must of such nature and aspects opinion about some of the main clear and persons ordinary definite my my therefore state own reasons for intelligence who the law would abide conclusion. will know how to to its require- conform It to be conceded ments.5 delegate powers to execu- cannot foregoing, Consistent with the the legisla- depart- tive or administrative officers or Attorney has ture authorized General to However, ments. it is also to be realized carry out policy appro- the Act under the complexities that due to of human soci- U.C.A.1953, priate safeguards. sections 58- increasing, ety, which are ever the function list through 37-3 various factors for the necessarily branch must Attorney General consider determin- making body of a policy spell ing control a substance. These that it cannot out all the details of whether to application include potential the administration and of law. of the substances abuse, necessary history pattern that the exec- Consequently, and current *8 Here, apparently Agriculture, supra 20. one would need to search 3. Rowell v. State Board of Provo, Utah. note 1. out a chemist Timmons, City, Wash.App. Young 24 67 12 1. v. Salt Lake Utah P.2d 4. State v. 527 P.2d Agricul- (1902); v. State Board of 1399 Rowell ture, P.2d 1 98 Utah State, Utah, (1974); 5. Greaves v. Harriss, Id.; 138. U. S. U.S. 74 S.Ct. 16 C.J.S. Constitutional Law § L.Ed. 989. abuse, whether the substance is controlled ing because of their effect on the central federal law and whether it is an system; nervous or which potential has a precursor immediate of a substance already for abuse because of their depressant or Act; controlled under the and the current stimulant effect on the sys- central nervous tem; knowledge state of scientific of the sub- or which has a hallucinogenic effect stance and the effects of its use. on the user. regard
In to the requirement legislature sought notice to to control the use 58-37-5(3) public, provides: of all drugs such and thereby protect those of its might citizens who use them to their every substance controlled own damage and harm. It realized that attorney general to have effect shall might there be other harmful substances be certified and filed with the office of not then known which equally would be secretary of state. dangerous to users and so a keep permanent register state shall inserted into the law2 that authorized the the rules or controls certified. [Emphasis Attorney General of the State of Utah to added.] such add substances to the list of proscribed anyone reading It should be obvious to drugs. statutes, conferring those such on General, Attorney that in order to meet authority given thus attorney law, requirements process not, of due general is in my opinion, delegation there must be with the compliance require- powers. strictly He is limited ments, certification, both as to the and the in his determination as to whether the sub- filing in the office of the Secretary injurious State stance is to the user. The sub- any drug the statement as to prohibited, so stance must be of one of the classes set out office, that there is notice in that public so in the statute. Notice of hearing to de- by anyone where can be examined who termine drug whether the new should be has an interest therein. placed on required the list is given, right to be heard must be afforded As indicated in the main opinion, the to all persons. interested The statute3 pro- did not establish that the statutory any is, vides that person who may who requirements above referred to had been be, designation affected such with; complied and particularly it was not right listed substance has a judicial to a shown that there filing had been the validity determination of the of the rule or State; the Secretary of but there was some control by filing an action for declaratory evidence indicating contrary. to the relief the district court of Salt Lake view of that failure there no foundation County. The court also declare the upon which to conclude that the Attorney rule invalid for a substantial failure to com- designation General’s of demerol as a con- ply with provisions of the act relating trolled substance provides a valid basis for procedure ascertaining the classi- charging prosecution For crime. drug. fication of the new join these reasons I in affirming the trial court’s decision. The pivotal question is, in this case there- fore, whether attorney
ELLETT, Chief Justice (dissenting). drugs to add to the controlled sub- drugs listed 120 as grant “con- stances schedule is a of an uncon- substances,”1 trolled fined, i. e. vagrant substances that power; or whether his func- Health, Secretary Education and tion merely to determine upon the facts Welfare or Attorney General of the which legislative policy depends and to ex- United States has found after investigation ercise discretion in a narrow area defined by regulation designated as habit form- by ascertainable standards. U.C.A., amended, 3.U.C.A., amended, as 58-37-5(b)(7). 58-37 —4. as U.C.A., amended, 58-37-3. *9 the trial of judgment I would reverse in de- applied to be test appropriate trial on case for remand the was articulated court
termining question this Justice Wolfe opinion of merits. concurring v. Trade Commission:4 Revne minutely defined rigid and require
To the matters to where guides or
standards as to a nature are of such regulated needed might prevent flexibility,
require Otherwise, legislature
remedies. possi- all anticipate required
would be arise and itself might which situations
ble to fit each such guide or supply a rule BUYER’S ASSOCIA- IMPORT DIRECT might be situation, requirement TION, Appellant, Plaintiff impossible. palpably v. the detail con- of the measure Roughly, is what the guides INC., L., standards or tent of Defendant K. S. will regulated subject to be Respondent. matter or Otherwise, leg- admit of. practically No. 14908. could not exercise islature regula- Court Utah. acutely Supreme need might what regulate complexity diversity tion because Nov. involved, problems regulative setting admit practically would not standards.
sufficiently detailed this Court applied by standard This Bennett,5 case, plain- In Clayton of a stat- constitutionality attacked the
tiff licensing of architects relating to the
ute alia, unlawful dele-
because, it was an inter uphold- authority.
gation statute, this noted:
ing the Court qualifications
certain basic education, moral charac- age,
relating to satisfactorily requirement
ter set forth in are an examination
passing that the It seems obvious statutes. than to set go could no further
legislature standards.
up such constitu- question
To resolve the case, all that the statute in this
tionality of attorney gen- if the determine
remains drugs to the controlled
eral’s to add guides subject to those rules
list reasonably expected could be provide. there is no merit to to me that
It seems in the law there exists contention that equal protection
any denial authority.
unconstitutional 155, 186, P.2d 5. 5 Utah 2d 192 P.2d 4. 113 Utah